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ELCPartially AllowedELC Case at Kwale (transferred from High Court; related suit MCELC E013 of 2024 and ELC E063 of 2025 referenced)· [2026] KEELC 3224 (KLR)

Meadow Oaks Limited & another v Ulinzi Limited & 11 others (Environment and Land Case E021 of 2025) [2026] KEELC 3224 (KLR)

Environment and Land Court of Kenya
5 May 2026
37,242 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~149 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ordered property owners to restore a Diani beach property and water supply after defying court orders, and cited them for contempt.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kwale (Naikuni J) dated 5th May 2026 determining eight consolidated interlocutory applications by the Plaintiffs (Marco Gasporini and Ashminder Kaur, lessees of LR Kwale/Diani Beach/783) against the Defendants (Utunzi Limited and associated parties), together with two preliminary objections. The Defendants argued the suit was time-barred under Section 4(1)(a) of the Limitation of Actions Act and that the Plaintiffs' affidavits were defective; the Plaintiffs sought injunctive relief, reconnection of water supply, contempt citations for breach of the status quo orders of 11th March, 25th March and 24th July 2025, rectification of a clerical error in the 11th March 2025 order, a judicial site visit, and restoration of walls built on their property. The court dismissed the limitation objection, holding the cause of action rests on continuing violations and enforcement of court orders, and dismissed the affidavit-defect objection as not a pure point of law. Applying Giella v Cassman Brown, Mrao and Nguruman, the court found each application merited on prima facie case, irreparable harm and balance of convenience. Applying Samuel M. N. Mweru, the court found willful contempt of the status quo orders and cited the Defendants for contempt, with penal consequences to follow upon hearing. The court rectified the clerical error under Section 99 of the Civil Procedure Act, allowed the site visit and restoration applications, ordered restoration of water supply and removal of the walls, a Kshs. 350,000 deposit by the 2nd, 6th and 7th Defendants, DCI/OCS supervision with a 30-day report, and awarded costs of the applications to the Plaintiffs, with no costs on the 25th July 2025 objection. Note: the disposition inconsistently states the 14th May 2025 objection was 'allowed' despite finding it unmerited - a material internal contradiction flagged.

Key legal issues

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01

Whether the suit is statute-barred under Section 4(1)(a) of the Limitation of Actions Act

Holding

The preliminary objection fails; the cause of action rests on continuing violations and enforcement of court orders, not a historical contractual breach, and contempt proceedings are governed by the Judicature Act and Order 40 Rule 3(1), not the limitation statute.

Reasoning

The court accepted the objection raised a pure point of law but found the pleaded grievances arose from ongoing breaches of the 2025 status quo orders and constitutional property and water rights. It invoked the doctrine of continuing injury, the sui generis nature of constitutional claims, and Article 159(2)(d), concluding limitation did not bar a suit anchored on enforcement of subsisting court orders.

02

Whether the Plaintiffs' preliminary objection on defective affidavits (Elizabeth Sommes) is a pure point of law

Holding

The objection is dismissed; the alleged defects in jurats, identity and commissioning are factual matters requiring evidence and cannot be resolved summarily, and affidavit defects are curable.

Reasoning

While Section 5 of the Oaths and Statutory Declarations Act prescribes jurat particulars, questions of whether the deponent was abroad, whether signatures were forged, and the use of multiple names require evidentiary inquiry. Relying on Mukisa Biscuit and Microsoft Corporation v Mitsumi, the court held the objection was not a pure point of law and striking out would offend substantive justice under Article 159(2)(d).

03

Whether the interlocutory applications met the Giella v Cassman Brown thresholds

Holding

Each application satisfied the prima facie case, irreparable harm and balance of convenience limbs, meriting interim protective and restorative relief.

Reasoning

Applying Giella, Mrao and Nguruman, the court found arguable property and constitutional rights (Articles 40 and 43), harm to water supply, personal safety and property beyond monetary compensation, and possession by the Plaintiffs tipping the balance of convenience toward preservation of the status quo and interim protection pending full hearing.

04

Whether the Defendants are in contempt of the orders of 11th March, 25th March and 24th July 2025

Holding

Contempt is established: the terms were clear, the Defendants knew them, and they willfully breached them; the clerical error in the order of 11th March 2025 does not vitiate it.

Reasoning

Applying Samuel M. N. Mweru and Mwarika v Mlaji, the court found the status quo orders clear and served, breaches proved (obstruction, assault, pipe-cutting, construction in defiance of NEMA/NCA), and willfulness inferable. Section 29 of the Environment and Land Court Act supplies penal sanctions and the court may rely on pre-repeal contempt law to avoid a lacuna.

p. 69
05

Whether the order of 11th March 2025 may be rectified for a clerical error

Holding

Yes; Section 99 of the Civil Procedure Act permits correction of accidental slips, and the Defendants were not prejudiced as they knew the true date of the applications.

Reasoning

The order referenced applications dated 10th March 2025 instead of 18th February 2025, an error arising from the electronic transfer/registration date. The Defendants' own replying affidavit acknowledged the correct date, no application to set aside was filed, and Article 159(2)(d) supports correction to defeat technicality.

p. 64
06

Whether a judicial site visit is warranted

Holding

Yes; under Orders 18 Rule 11 and 40 Rule 10(1)(a), a site visit is proper where it will yield evidence assisting a just decision, and the physical facts (walls, water supply) are best appreciated by direct observation.

Reasoning

Citing Cyrus Nyaga Kabute and Parkire Stephen Munkasio, the court reiterated that a locus in quo visit must be an occasion for receiving evidence, with notes recorded and agreed or read out. Given allegations of walls built in breach of the status quo order and interference with water supply, a visit would not prejudice the Defendants and would aid determination of contempt.

Legal principles established

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  • Continuing violations of property rights and contempt of court orders are not defeated by Section 4(1)(a) of the Limitation of Actions Act
  • A minor clerical error in a court order does not negate its validity or enforceability
  • Once the terms of an order, knowledge and breach are proved, willfulness and bad faith are inferred unless rebutted
  • Court orders must be obeyed and any grievance must be pursued by setting aside, varying, reviewing or appealing them

Court orders

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  1. 1.Notice of Motion dated 18th February 2025 allowed upon finding of prima facie case and irreparable harm
  2. 2.Notice of Motion dated 21st March 2025 allowed, contempt of earlier orders sufficiently established
  3. 3.Notice of Preliminary Objection dated 14th May 2025 dismissed/overruled with costs to the Plaintiffs
  4. 4.Notice of Preliminary Objection dated 25th July 2025 dismissed/overruled with no orders as to costs
  5. 5.Notice of Motion dated 19th May 2025 allowed
  6. 6.Notice of Motion dated 12th September 2025 allowed
  7. 7.Notice of Motion dated 16th October 2025 allowed with rectification of the clerical error in the order of 11th March 2025 under Section 99 of the Civil Procedure Act
  8. 8.Notices of Motion dated 11th February 2026 (A & B) allowed, including a judicial site visit, restoration of the property and injunctive relief
  9. 9.Defendants/Respondents cited for contempt of the orders dated 11th March 2025, 25th March 2025 and 24th July 2025, penal consequences to follow upon hearing of the contempt proceedings
  10. 10.Defendants/Respondents to forthwith restore the Applicants' water supply and desist from interfering with access to water from their neighbour or any other lawful source
  11. 11.Defendants/Respondents to remove the walls constructed on and adjacent to the Applicants' property and restore the property to its prior state under supervision of a qualified structural engineer appointed by agreement or by the Court
  12. 12.In default of compliance within fourteen (14) days, the Applicants at liberty to undertake restoration at the Defendants' cost, recoverable against the deposit ordered
  13. 13.2nd, 6th and 7th Defendants to deposit into Court Kshs. 350,000/= as security for restoration costs within seven (7) days
  14. 14.Directorate of Criminal Investigations and OCS Diani to supervise compliance and file a report within thirty (30) days
  15. 15.Costs of the various applications to be borne by the Defendants/Respondents, with no costs awarded on the preliminary objection dated 25th July 2025
Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 99 of the Civil Procedure Act, Cap. 21; Order 40 and Order 51 of the Civil Procedure Rules, 2010; Section 29 of the Environment and Land Court Act, No. 19 of 2011; Articles 40, 43, 48 and 159(2)(d) of the Constitution of Kenya, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Meadow Oaks Limited & another v Ulinzi Limited & 11 others (Environment and Land Case E021 of 2025) [2026] KEELC 3224 (KLR)", Case Analysis (2026). ELC Case at Kwale (transferred from High Court; related suit MCELC E013 of 2024 and ELC E063 of 2025 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3224/eng@2026-05-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.